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BRUNSWICK AND WESTERN R. R. CO. v. PONDER.

[117 Ga. 63, 43 S. E. 430.] CARRIER—Duty to Protect Passengers.-A railroad company is bound to use extraordinary care and diligence to protect its pag. sengers, while in transit, from violence or injury by third persona. (p. 153.)

CARRIER—Duty to Protect Passenger from Arrest.--When & passenger on a train is being arrested by officers of the law, under color of authority, the railroad company is under no duty to inquire into the legality of the arrest. (p. 154.)

CARRIER—Liability for Arrest of Passenger.-When the ar. rest of a passenger is apparently regular, and there is nothing to put the railroad company on notice that the arrest is illegal, it is not liable for failing to interfere with the officers and prevent the arrest, or for stopping the train to allow the removal of the prisoner. (p. 155.)

CARRIER--Liability for Excessive Force in Arrest of Passenger.-If the arrest of a passenger on a train is made under such cir. cumstances that the conductor may assume that it is lawful, the railroad company is not liable for excessive force used by the officers. (p. 155.)

W. E. Kay, S. W. Hitch and John C. McDonald, for the plaintiff in error.

John T. Myers, for the defendant in error.

63 SIMMONS, C. J. Sometime in June, 1901, Ponder boarded a passenger train of the Brunswick and Western Railroad Company at Fairfax, Georgia. He paid his fare to Waycross. When the train stopped at Waresboro, a station intermediate between Fairfax and Waycross, three men boarded the train, assaulted Ponder, and removed him from the train. After seta

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tling for a small sum his claims against the individuals who assaulted him, Ponder brought suit against the railroad company for its failure to protect him. The jury returned a verdict for the plaintiff for five hundred dollars. The company

mored for a new trial, the judge overruled the motion, and the

company excepted. The evidence shows that when the train stopped at Waresboro the conductor stepped off to assist the passengers who were getting on or off. While he was so engaged, three men boarded the train to arrest Ponder, entering the train at a point other than that at which the conductor was standing. One of these men was marshal of the town of Taresboro, another was the deputy marshal, and the third was specially deputized by the marshal to assist in making the arrest

. They had no warrant, and seem to have arrested Ponder for having failed to pay one of them a debt. They ordered him to get off of the train with them, and, upon his refusal, began to strike and beat him. At this juncture the conductor came in and discovered, for the first time, that the officers were on the train making an arrest. He took hold of one of them and remonstrated with them all, suggesting that they go on to Waycross, the train having already started. This they refused to do, ordering the conductor to stop the train. The conductor, when he came in, had heard Ponder tell the officers that he had paid them all he owed them; but the conductor made no investigation as to the charge against Ponder, and did not try to ascertain whether the officers had a warrant. He knew that the officers were such, and they had on former occasions arrested persons on his train and taken them off. Upon their demand he had the train stopped before it had left the corporate limits of the town. The officers and Ponder then left the train. The motion for new trial complains that the Terdict is contrary to the evidence and without evidence to sup. port it, and that the court erred in certain charges and refusals to

charge. Our idea of the law of the case, as given below corers these assignments of error, and we will not deal with

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them separately.

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1. A railroad company is bound to use extraordinary care and diligence to protect its passengers, while in transit, from violence or injury by third persons. If a third person boards the train and assaults a passenger, it is the duty of the railroad company to use extraordinary care to protect the passenger, and in this state the conductor of a train carrying a passenger is invested with all the powers of a police officer:

Pen. Code, sec. 902. At the same time, a conductor would not be justified in interfering with the lawful arrest of one who happened to be a passenger on his train. This 65 much is clear. The present case, however, falls within an intermediate class. The arrest of Ponder was not a lawful one, but of this fact the officers of the railroad company had no notice. The arrest was made by officers of the law, acting under color of their office, and we think the company was under no duty to inquire into the legality of the arrest. The arrest was apparently regular, and, in the absence of any knowledge or notice to the contrary, the officers and agents of the company could assume that it was lawful. The conductor knew that the men making the arrest were officers, and he had previously had passengers on his train arrested by them and removed from the train. While the officers were attempting to arrest Ponder, the latter told them in the hearing of the conductor that he had paid them all he owed them. This was not of itself suficient to put the conductor on notice that the arrest was for a debt. So far as he knew it was a claim by Ponder that he had restored all of the money which he had acquired by the commission of some crime with which he was charged, or that he had attempted illegally to settle some criminal prosecution. The arresting officers had no warrant, but in this state an officer may arrest without warrant an offender who is attempting to escape. Further than this, the conductor did not know of the absence of a warrant, and Ponder did not raise that question or represent to the conductor that the arrest was unlawful or unauthorized.

2. The conductor made a decided effort to quiet the disturbance on the train and to stop the assaults on Ponder. One of the plaintiff's witnesses testified that the conductor did all that he could have done. However this may be, we think the failure of the conductor to interfere with the officers and prevent the arrest did not give Ponder any cause of action against the company. It is essential to the maintenance of the law that its processes should be promptly executed and its officers allowed to proceed without interference, except in cases where such interference is clearly justified. It would never do to allow a railroad conductor to interfere with officers of the law and prevent arrests by them merely because he did not know whether or not they were acting within their power and authority. If the conductor had knowledge that the arrest was unlawful, then it would be his duty to use extraordinary diligence to prevent it and protect the passenger, but even in that

case the company would not be an insurer against such arrest. If * the conductor had notice that the arrest was wrongful, it would be his duty to make inquiry into the matter. But where the arrest is by officers of the law and is apparently regular, and there is nothing to put the company on notice that the arrest is illegal, the company cannot be held liable for a failure to interfere with the officers and prevent the arrest. It was argued that the conductor had also actively aided in the arrest by stopping his train to enable the officers to remove their prisoner. This is answered by what has been said above. The conductor was ordered to stop the train, and, as he had a right to presume that the arrest was legal, his obeying the command of the officers was no breach of duty to the passenger. An officer may stop a train to make an arrest of

person thereon: St. Johnsbury etc. R. R. Co. v. Hunt, 60 Vt. 588, 6 Am. St. Rep. 138, 38 Am. & Eng. R. R. Cas. 307, 15 Atl. 186. And certainly an officer may, after having made the arrest, stop the train to remove his prisoner. It would have been an interference with the officers to have carried them on out of their town while they were endeavoring to make an arrest within it . In this particular case it further appears that, at the time the train stopped upon the command of the officers, Ponder had Ceased resisting and agreed to get off.

3. One other question remains: Was the railroad company liable for allowing the arresting officers to use more force than was necessary to make the arrest? Ponder appears to have been considerably beaten and bruised, and the evidence would Warrant a finding that more force was used to make the arrest than was necessary, and that this was evident to the conductor or to anyone else who was present. It was argued that, even If the company was under no duty to prevent the arrest, it was still liable for not seeing to it that no unnecessary force was used. In the first place the conductor seems to have done what he could to prevent this, and but little force was used after he arrived upon the scene, the violent assaults having occurred before he discovered what was going on or had time to take part. Nor is there any evidence of negligence on the part of the company's agents in not sooner discovering that the officers were on the train endeavoring to arrest Ponder. Then, too, if our conclusion be correct that the conductor could assume that the arrest was a lawful one and was under no duty to prevent it, we think the company cannot be held liable for 87 the excessive force used. Ponder became the prisoner of

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the officers as soon as they laid hold on him and before he was removed from the train. He was taken out from under the protection of the conductor as against the officers of the law. He was then in the custody of the law, and, whether or not the conductor or anyone else was authorized to prevent the use of unnecessary force in making the arrest, the railroad company was in this regard no longer under any duty to him as a passenger: See, in this connection, Jardine v. Cornell, 50 N. J. L. 485, 14 Atl. 590, 34 Am. & Eng. R. R. Cas. 307.

Judgment reversed. By five justices.

A Carrier must Protect Its Passengers from the assaults, insults, and ill-treatment of their fellow-passengers, strangers, and its own ser: vants: United Railways etc. Co. v. Deane, 93 Md. 619, 86 Am. St. Rep. 455, 49 Atl. 923; Haver v. Central R. R. Co., 62 N. J. L. 282, 72 Am. St. Rep. 647, 41 Atl. 916; Spade v. Lynn etc. R. R. Co., 172 Mass. 488, 70 Am. St. Rep. 298,52 N. E. 747; Birmingham Ry, etc. Co. v. Baird, 130 Ala. 334, 89 Am. St. Rep. 43, 30 South. 456; Savannah etc. Ry, Co. v. Quo, 103 Ga. 125, 68 Am. St. Rep. 85, 29 S. E. 607; White v. Norfolk etc. R. R. Co., 115 N. C. 631, 44 Am. St. Rep. 489, 20 S. E. 191; monographic notes to Rommel v. Schambacher, 6 Am. St. Rep. 734-737; Richmond etc. R. R. Co. v. Jefferson, 32 Am. St. Rep. 90-101; Goodloe v. Memphis etc. R. R. Co., 54 Am. St. Rep. 89; but it is not bound to protect them from arrest by officers of the law: Owens v. Wilmington etc. R. R. Co., 126 N. C. 139, 78 Am. St. Rep. 642, 35 S. E. 259; monographic note to Tryon v. Pingree, 67 Am. St. Rep. 426, 427.

ROBINSON v. GEORGIA RAILROAD AND BANKING CO.

[117 Ga. 168, 43 S. E. 452.) BASTARDS are not “Children."'--Prima facie, the word "child” or "children,

when used in a statute, will, or deed, means legitimate child or children; bastards are not within the term “child" or children." (p. 157.)

DEATH.-A Statute Giving a Right of Action for a bomicide should be construed strictly. (pp. 157, 164.)

DEATH.—The Mother of an Illegitimate Child has no right of action, in Georgia, for its wrongful or negligent homicide. (p. 164.)

Arnold & Arnold, for the plaintiff.

Joseph B. and Bryan Cumming and Sanders McDaniel, for the defendant.

168 FISH, J. This record presents but a single question for our determination, and that is, Has the mother of an illegitimate child a right of action, under the Civil Code, section 3828,

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